How should employers handle unvaccinated workers?

As more companies seek to enforce vaccine mandates—and employees voice growing concerns over rigid coronavirus ultimatums—here’s guidance on how best to proceed.

By Robby Brumberg      @robbybrumberg      

Are you prepared to fire an unvaccinated worker who shows up to the office?

CNN has done just that, in one of the first instances of a private employer bringing down the hammer on mandatory workplace vaccine policies. It certainly won’t be the last such case. As BBC reports, CNN canned three employees who refused to comply with its COVID-19 protocols. In an internal memo, CNN boss Jeff Zucker wrote, “Let me be clear—we have a zero-tolerance policy on this.”

The wildfire spread of the Delta variant is throwing a giant monkey wrench into the return-to-work plans of companies around the globe. Businesses are desperate to avoid another shutdown and to provide a safe environment for those employees who’re returning to work. But at what cost to morale, reputation, productivity and engagement? Is there a middle ground in this brewing battle?

Walter Foster, a labor and employment attorney with Eckert Seamans Cherin & Mellott’s Boston office, says other companies may follow CNN’s lead in terms of swift, hard-nosed enforcement. BBC notes that corporate giants such as Facebook, Google and United Airlines have all announced that they’ll require onsite employees to offer vaccination proof, while Goldman Sachs is “requiring employees to disclose their vaccination status.”

Meanwhile, President Biden has issued new guidelines for federal workers, stating that they “will be required to sign forms attesting they’ve been vaccinated against the coronavirus or else comply with new rules on mandatory masking, weekly testing, distancing and more.”

Forging a smart path forward

The ferocious debate swirling around COVID-19 public-health guidelines is putting companies in a difficult bind. However, as Foster notes, there are other options available to employers dealing with workers who refuse to comply with vaccine mandates. Instead of firing unvaccinated workers on the spot, you might consider a temporary transfer of duties or a suspension without pay until the health care risk abates. You might also rethink return-to-work plans until the pandemic loses steam.

Whatever you decide to do, make sure you consistently communicate with employees to ensure everyone’s clear on expectations, requirements and rules moving forward. You’d also be wise to establish—in writing—how you’ll deal with resistance, hesitation and second-guessing. Because it’s coming.  

Foster adds more legal context and clarity for employers. He notes:

  • EEOC guidance from last year permits mandatory vaccine policies with certain conditions to avoid any discrimination violations.
  • Safety and health precautions in the workplace weigh heavily in the consideration to protect all workers where infection rates are high.
  • At-will employment relationships permit employers to exercise their best judgment for the company in light of competing interests.

Employees should note that the law, in most cases of this nature, is firmly on the side of corporations. Companies can fire you for not complying with a vaccine mandate, though you can certainly take your shot in court. However, you could lose your unemployment benefits in the meantime.

This much is sure: CNN’s firing of unvaccinated workers will not be the last we’ll be hearing of this issue. Employers and employees alike should buckle up for bumpy days ahead—and get up to speed on all relevant rules, regulations and rights to ensure you remain on the right side of the law.